ELAINE IGNELZIv.ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH. CITY OF PITTSBURGH, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Elaine Ignelzi v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 269 of 1979.

COUNSEL

Mead J. Mulvihill, Jr., City Solicitor, with him D. R. Pellegrini, Deputy City Solicitor, for appellant.

Homer W. King, for appellee.

Judges Craig, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 61 Pa. Commw. Page 102]

The City of Pittsburgh (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County which sustained the appeal of Elaine Ignelzi (Appellee) from a decision of the Zoning Board of Adjustment (Board) and ordered the grant of a variance for which Appellee had applied.

On or about November 8, 1938 Appellee's husband,*fn1 Louis Ignelzi, purchased a property on which a 2 1/2 story structure was located. The property was located in a B-residence zone under an ordinance which was in effect from 1923 until 1958. Since 1958 the property has been located in an R-2 zone. According to the Board's decision, under both the B-residence and R-2 zones occupancy of a "structure" is restricted to two dwelling units. City records indicate that in 1935 an occupancy permit was issued for the subject premises permitting a two family dwelling. In 1939, a building permit was issued to Dr. Ignelzi for an "extension"

[ 61 Pa. Commw. Page 103]

requiring the expenditure of $125.00. Appellee testified at a hearing before the Board that by 1941 Dr. Ignelzi had converted the subject structure to a seven-unit multiple family dwelling.*fn2 No occupancy permit was ever obtained for the premises as converted. This illegal nonconforming use continued subsequent to 1941. On January 5, 1979, Appellee, who inherited the property from her husband in 1958, applied for a variance to allow continued use of the structure as a seven-unit dwelling. The Board held a hearing on the matter on January 19, 1979 at which Appellee and several objectors to the application testified. The Board denied the application on February 23, 1979 and Appellee filed a timely appeal with the court of common pleas. The court below, without taking additional evidence, sustained the appeal and ordered that the variance be granted. The instant appeal followed.

The issue raised for our consideration is whether under the facts of this case Appellee has acquired a "vested right" to violate existing zoning restrictions. We conclude that she has not.

Our scope of review in cases of this nature where the court below has taken no additional evidence is limited to a determination of whether the Board has committed an abuse of discretion or an error of law. Lewis v. Lower Gwynedd Township Zoning Hearing Board, 24 Pa. Commonwealth Ct. 574, 357 A.2d 725 (1976).

The reasoning of the Board in this case is not at all clear. The Board bases its refusal to grant a variance on its finding that Appellee "failed to submit any proof of occupancy of this property as a 7 unit multiple family dwelling. . . ." Thus the Board apparently concludes that an illegal ...

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